A Travis County district judge had granted the divorce to lesbian couple Angelique Naylor and Sabina Daly last February. Naylor and Daly married in Massachusetts in 2004 before returning to Texas and adopting a child. Abbott’s office appealed their divorce, arguing that judges in Texas cannot grant same-sex divorces because the state doesn’t recognize same-sex marriage.

Abbott won an appeal last year challenging another same-sex divorce in Dallas, where the 5th District Court of Appeals ruled in his favor.

Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. The Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.

The argument ran for almost two and a half hours, covering two basic questions:

 Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case-have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.

 Second, is Prop 8 unconstitutional?

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue. In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.

Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.

In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.

At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation-which was the central defense offered by the proponents’ attorney Charles Cooper. Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.

Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution. In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”

Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people. Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision with a few months. In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.

"U.S. District Judge Ronald Leighton in Tacoma ruled in September that Maj. Margaret Witt's dismissal under the military's 'don't ask, don't tell' policy violated her rights. Witt was suspended in 2004 and subsequently discharged after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back. The Justice Department filed the appeal with the 9th U.S. Circuit Court of Appeals on Tuesday, the deadline for doing so. The government is also appealing a ruling from a federal judge in California that found the "don't ask, don't tell" policy unconstitutional."

White House Press Secretary Robert Gibbs released the following statement:

“Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional. This filing in no way diminishes the President’s — and his Administration’s — firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy. In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck.”

Attached please find Log Cabin Republicans’ application to vacate the Ninth Circuit order and related papers that were just filed with the US Supreme Court. Also find below a quote from R. Clarke Cooper, executive director of Log Cabin Republicans, and Dan Woods, White & Case partner who is representing Log Cabin Republicans. Also included below is a short Q&A regarding process moving forward that you may find helpful.

“We have today filed an application with the United States Supreme Court asking it to vacate the Ninth Circuit’s order staying Judge Phillips’s injunction pending appeal. We argue in this application that the Ninth Circuit order was arbitrary and an abuse of discretion and should be vacated immediately. We continue to look forward to the day when all Americans can serve in our military without regard to their sexual orientation,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans.

Q: Will the entire Supreme Court be involved in considering whether to vacate the Ninth Circuit order?
A: That is up to Justice Kennedy. He may decide himself or he may refer the application to the full court.

Q: How long will the review take?
A: That is also up to the court. The Court may allow the government the opportunity to respond to our application.

Q: What are the next steps if the Court vacates the ruling/doesn’t vacate the ruling?
A: If the Court vacates the stay order, DADT is dead pending the appeal, and we have for all inteappeal from Judgnts and purposes won. If it doesn’t, we will next move in the Ninth Circuit to expedite the e Phillips’s decision.

In a suckily timed Election Eve ruling, late this afternoon the Ninth Circuit Court of Appeals indefinitely extended their stay on the overturn of DADT.

In an eight-page order, the judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the 1993 policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy.” Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be discharged. It also heightens pressure on the Obama administration to persuade the U.S. Senate to repeal the 1993 law before a new Congress is sworn in.

The Court also gave the DOJ until January 24th to file their broader appeal against Judge Phillips’ ruling. And the Log Cabin Republicans now have until February 22nd to respond to that.REACTIONS

Lambda Legal

“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate. But it’s important to remember that today’s ruling was not: a consideration of the merits of the case. That remains for another day. Each day that ‘Don’t Ask, Don’t Tell’ remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the President, who can issue a stop-loss order to put an immediate end to discharges under ‘Don’t Ask, Don’t Tell.'”

Log Cabin Republicans

“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform. Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy.”

Human Rights Campaign

“Every day that ‘Don’t Ask, Don’t Tell’ is in force, Americans are losing out on the best and brightest service members defending our country. For the good of our national security, the endless legal wrangling and political posturing has to stop. This is the year for the President to lead and for Congress to clean up the mess it made when it enacted this discriminatory and unconstitutional law nearly two decades ago.”

Former Clinton Solicitor General Walter Dellinger was on Rachel Maddow tonight, and he proposed that the Obama administration continue to appeal DADT, but that in their appeal they make clear that they believe the law is unconstitutional and they think the court should strike it down – i.e., they should not defend the law in their appeal. The same logic could just as easily apply to the administration’s defense of DOMA on appeal.

I’m not convinced that the administration has to appeal at all, but even if they think they do, they most certainly don’t have to defend the law in their appeal. Yet that’s what they’re currently doing, defending DADT and DOMA, and it needs to stop.

Some of you will view this as good thing. Via Chris Geidner at Metro Weekly:

In a move expected by most legal observers, the U.S. Department of Justice this afternoon filed notices of appeal in two cases striking down the federal definition of marriage, contained in the Defense of Marriage Act, as unconstitutional. U.S. District Court Judge Joseph Tauro had ruled on July 8 in the cases, Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services, that Section 3 of DOMA was unconstitutional on several grounds, finding that the marriage definition violated the equal protection and due process guarantees, as well as the Spending Clause and Tenth Amendment.

Gay & Lesbian Advocates & Defenders, which argued the Gill case on behalf of the plaintiffs, issued a statement moments after the government’s filing. “We fully expected an appeal and are more than ready to meet it head on,” Mary L. Bonauto, GLAD’s Civil Rights Project Director, said in the statement. “DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits. We are confident in the strength of our case.”

(09-08) 16:53 PDT SAN FRANCISCO — The state Supreme Court dealt a setback to California’s ban on same-sex marriage today, refusing to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a federal judge’s ruling striking down the voter-approved measure.

…

A state appeals court dismissed the [Pacific Justice Institute] suit without a hearing, and the state’s high court denied review today without comment.